CHAPTER 2: LAW OF PERSONS AND FAMILY
WHAT IS A ‘PERSON AND WHY DOES THIS MATTER?
• Law defines a person as someone or something that can have legal rights and
duties.
• A person may be defined as a being, entity or association can have legal and
duties.
• Entities as ‘persons’ they are called artificial persons or juristic persons –
commercial companies, banks etc.
• Some writers use legal subject as a person.
• Legal personality, quality of being a person – all ‘persons’ have a legal
personality.
• Legal subjectivity emphasizes legal aspects of a person’s activities and
existence.
• Only people can have legal rights and duties – essential characteristic that
distinguishes a person from a thing or from legal objects.
WHAT ARE RIGHTS, DUTIES AND LEGAL OBJECTS?
• Physical things (houses, farms, cars, cats and pencils). The object of the right is a
physical thing – the right is a real right.
• Performances (babysitting, taxi ride). Where the object of the right is a
performance – personal right.
• Aspects of your personality (reputation or privacy). Where the object of the right
is an aspect of your personality – personality right.
REAL RIGHTS
• Ownership of a physical thing
• Operates against the whole world, if a person owns a thing everybody else in the
world has a corresponding duty towards them.
• A Real Right is only a right. It does not have a superior right to bring it in line with
the right of ownership of immovable property. A Real Right has limitations. A real
right cannot be interfered with; however, the right is not absolute. It will come to
an end.
PERSONAL RIGTHS
• Object of the right is a performance – personal rights.
• Personal rights operate primarily against a particular person – person who owes
the performance.
• Example performances owing in terms of a contract.
• Put differently, a personal right is a right against another person for the
performance of an obligation under which the counterparty must do something
or refrain from doing something.
1
, PERSONALITY RIGHTS
• Every person has the right to these aspects of personality and may claim
damages if infringed.
• Physical integrity, bodily freedom, arrest, reputation, dignity and privacy
• Operate against the world.
CONSTITUTIONAL RIGHTS
• The rights mentioned are private laws
• Constitutional laws are public laws – set out in the Bill of rights
• Constitution is the supreme law of the country – no rule of the law should violate
any constitutional rights.
WHAT IS ‘CAPACITY’
• Capacity means ability or competence.
• Refers to what a person can do in terms of the law.
• Passive legal capacity
• Capacity to perform juristic acts
• Capacity to be held accountable for wrongdoing.
• Capacity to litigate.
PASSIVE LEGAL CAPACITY
• Passive means to be inert or acted upon.
• Capacity to merely have legal rights and duties
• No effort or positive action is required from you.
• All persons have passive legal capacity.
CAPACITY TO PERFORM JURISTIC ACTS
• Voluntary human acts which have intended legal consequences.
• Persons capacity to actively change their legal position
• In law juristic acts are regarded as ‘expressions of will’ of the person performing
the acts.
• Law only recognizes capacity to perform juristic acts if the person can understand
the legal nature and legal consequences of their acts.
• Such as: entering into contracts, getting married, acquiring and alienating
property, making a will, consenting to medical treatment, holding office
CAPACITY TO BE HELD ACCOUNTABLE FOR WRONGDOING
• Person only be found guilty of a crime or liable for a delict if they acted with ‘fault’
– acted with either intention or negligence.
• If person is capable of having mental states of intention or negligence can be held
accountable for crimes and delicts.
• A person will be accountable if:
2
WHAT IS A ‘PERSON AND WHY DOES THIS MATTER?
• Law defines a person as someone or something that can have legal rights and
duties.
• A person may be defined as a being, entity or association can have legal and
duties.
• Entities as ‘persons’ they are called artificial persons or juristic persons –
commercial companies, banks etc.
• Some writers use legal subject as a person.
• Legal personality, quality of being a person – all ‘persons’ have a legal
personality.
• Legal subjectivity emphasizes legal aspects of a person’s activities and
existence.
• Only people can have legal rights and duties – essential characteristic that
distinguishes a person from a thing or from legal objects.
WHAT ARE RIGHTS, DUTIES AND LEGAL OBJECTS?
• Physical things (houses, farms, cars, cats and pencils). The object of the right is a
physical thing – the right is a real right.
• Performances (babysitting, taxi ride). Where the object of the right is a
performance – personal right.
• Aspects of your personality (reputation or privacy). Where the object of the right
is an aspect of your personality – personality right.
REAL RIGHTS
• Ownership of a physical thing
• Operates against the whole world, if a person owns a thing everybody else in the
world has a corresponding duty towards them.
• A Real Right is only a right. It does not have a superior right to bring it in line with
the right of ownership of immovable property. A Real Right has limitations. A real
right cannot be interfered with; however, the right is not absolute. It will come to
an end.
PERSONAL RIGTHS
• Object of the right is a performance – personal rights.
• Personal rights operate primarily against a particular person – person who owes
the performance.
• Example performances owing in terms of a contract.
• Put differently, a personal right is a right against another person for the
performance of an obligation under which the counterparty must do something
or refrain from doing something.
1
, PERSONALITY RIGHTS
• Every person has the right to these aspects of personality and may claim
damages if infringed.
• Physical integrity, bodily freedom, arrest, reputation, dignity and privacy
• Operate against the world.
CONSTITUTIONAL RIGHTS
• The rights mentioned are private laws
• Constitutional laws are public laws – set out in the Bill of rights
• Constitution is the supreme law of the country – no rule of the law should violate
any constitutional rights.
WHAT IS ‘CAPACITY’
• Capacity means ability or competence.
• Refers to what a person can do in terms of the law.
• Passive legal capacity
• Capacity to perform juristic acts
• Capacity to be held accountable for wrongdoing.
• Capacity to litigate.
PASSIVE LEGAL CAPACITY
• Passive means to be inert or acted upon.
• Capacity to merely have legal rights and duties
• No effort or positive action is required from you.
• All persons have passive legal capacity.
CAPACITY TO PERFORM JURISTIC ACTS
• Voluntary human acts which have intended legal consequences.
• Persons capacity to actively change their legal position
• In law juristic acts are regarded as ‘expressions of will’ of the person performing
the acts.
• Law only recognizes capacity to perform juristic acts if the person can understand
the legal nature and legal consequences of their acts.
• Such as: entering into contracts, getting married, acquiring and alienating
property, making a will, consenting to medical treatment, holding office
CAPACITY TO BE HELD ACCOUNTABLE FOR WRONGDOING
• Person only be found guilty of a crime or liable for a delict if they acted with ‘fault’
– acted with either intention or negligence.
• If person is capable of having mental states of intention or negligence can be held
accountable for crimes and delicts.
• A person will be accountable if:
2
